At a glance
- The U.S. Supreme Court has ruled that DHS may implement its public charge rule in all states except Illinois while litigation challenging the rule continues.
- DHS is expected to begin implementation shortly, requiring new forms and evidence from adjustment applicants, and from some nonimmigrants seeking to change or extend status in the United States.
The U.S. Supreme Court has lifted the last nationwide injunction barring implementation of the Department of Homeland Security (DHS) public charge rule. The rule can now be enforced temporarily in all states except for Illinois while lawsuits challenging the legality of the rule itself continue in lower courts.
In the coming days, DHS is expected to re-post the forms necessary to implement the public charge rule. Once it does so, adjustment of status applicants will be required to provide additional information and documentation in support of their applications. Nonimmigrants seeking to change or extend their status in the United States will be asked additional questions to determine whether they are subject to a new "public benefit condition" on eligibility.
The DHS rule, originally set to take effect October 15, 2019, broadens the agency's authority to determine whether certain foreign nationals will become a public charge of the United States. Under the rule, foreign nationals seeking certain immigration benefits – especially adjustment of status applicants – would be required to provide an unprecedented amount of personal information and documentation in support of their applications.
Just days before the rule's effective date, several district courts barred DHS from implementing the rule. Federal judges in New York, Maryland, and Washington issued nationwide injunctions blocking implementation while litigation on the rule continued. An Illinois federal court issued an injunction against the rule that applies only in Illinois.
DHS appealed all of the lower court decisions. While nationwide injunctions in the Maryland and Washington cases were lifted by the Fourth and Ninth Circuits, the Second Circuit kept the last remaining nationwide injunction in place. DHS requested that the U.S. Supreme Court lift that order, and the Supreme Court has ruled in the government's favor.
While the Supreme Court order lifts the last remaining nationwide injunction, it does not affect the limited injunction still in effect in Illinois. The public charge rule still cannot be enforced there unless and until the Seventh Circuit lifts that injunction.
Meanwhile, appeals on the legality of the rule itself are ongoing in the Second, Fourth, and Ninth Circuits, and the government is expected to appeal any unfavorable decision to the U.S. Supreme Court.
How the public charge rule affects applicants
Adjustment of status applicants: Upon implementation of the public charge rule, most adjustment applicants – including employment-based applicants –will be subject to a "totality of circumstances" test designed to determine their likelihood of becoming a public charge at any time in the future. The test takes into account each applicant's age, household size, income, financial liabilities, receipt of certain public benefits, health, and education and skills, at a minimum – but with much higher documentation requirements than under the prior public charge test. To assess applicants, DHS will require them to complete a new 18-page declaration of self-sufficiency form and submit detailed documentation in support of the information provided.
Nonimmigrants seeking to change or extend status in the United States: These nonimmigrants will be required to disclose whether they have received or are certified to receive certain public benefits on or after October 15, 2019. In order to negatively impact their application, the foreign national must have received the benefits for more than 12 months within a 36-month period since obtaining their current nonimmigrant status. Two public benefits received within one month are counted as two months of benefits.
Implementation of the public charge rule
USCIS is expected to provide information on implementation of the rule shortly, including new and updated forms necessary to gather information on public charge. It is not yet known whether the agency will grant employers and foreign nationals a grace period for use of the current forms.
Due to the increased documentation requirements related to public charge, especially for adjustment applicants, employers and foreign nationals should expect both case preparation and government processing times to increase.
Visa applicants and public charge
As a reminder, the State Department issued its own public charge regulation – originally set to take effect on October 15, 2019 – that largely mirrors the DHS version and would apply to visa applicants overseas. The State Department has delayed implementation of its rule until a new form is in place, so applicants are not currently subject to this rule. In the meantime, the State Department regulation is being challenged by litigation in the Southern District of New York.
Separately, a temporary nationwide injunction is in place preventing implementation of a presidential proclamation that would require immigrant visa applicants to demonstrate that they would have health insurance within 30 days of entry to the United States or sufficient funds to cover reasonably foreseeable expenses. That injunction remains in place while the lawsuit challenging the presidential proclamation continues. As such, visa applicants are not subject to the proclamation.
Fragomen is closely monitoring implementation of the new rule and will provide updates as new information becomes available.
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